IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 19-60297

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff−Appellee,

versus

DANIEL GUSTAVO PENA-MORALES, 

also known as Daniel Pena Morales Gustavo,

Defendant−Appellant.

* * * * * * *

No. 19-60307

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff−Appellee,

versus

JOSEPH NICOLE VERGARA-MORAN, 

also known as Joseph Nicole Vergara Moran, 

Defendant-Appellant.

United States Court of Appeals

Fifth Circuit

FILED

January 29, 2020

Lyle W. Cayce

Clerk

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Appeals from the United States District Court

for the Northern District of Mississippi

No. 1:18-CR-70-6

No. 1:18-CR-70-5

Before DAVIS, SMITH, and HIGGINSON, Circuit Judges.

PER CURIAM:*

With plea agreements, Daniel Pena-Morales and Joseph Vergara-Moran 

entered conditional guilty pleas to conspiracy to commit an offense against the 

United States which affected interstate commerce. They reserved the right to 

appeal the denial of suppression of evidence seized after a stop of their vehicle 

and another vehicle driven by their coconspirators at a safety checkpoint. 

“When reviewing a denial of a motion to suppress evidence, this Court 

reviews factual findings for clear error and the ultimate constitutionality of 

law enforcement action de novo.” United States v. Robinson, 741 F.3d 588, 594 

(5th Cir. 2014). In addition to deferring to the district court’s factual findings, 

we must view the evidence in the light most favorable to the prevailing party. 

United States v. Pack, 612 F.3d 341, 347 (5th Cir.), modified on other grounds 

on denial of reh’g, 622 F.3d 383 (5th Cir. 2010). A district court’s denial of a 

suppression motion should be upheld “if there is any reasonable view of the 

evidence to support it.” United States v. Massi, 761 F.3d 512, 520 (5th Cir. 

2014) (internal quotation marks and citation omitted).

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 

5TH CIR. R. 47.5.4.

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Viewing the evidence in the light most favorable to the government, we

conclude that the district court did not err. See Pack, 612 F.3d at 347. The 

safety checkpoint was lawful; the Supreme Court has upheld similar checkpoints where the intrusion into the privacy interest at stake is minimal. See, 

e.g., Illinois v. Lidster, 540 U.S. 419, 427−28 (2004); City of Indianapolis v. 

Edmond, 531 U.S. 32, 37 (2000); Mich. Dep’t of State Police v. Sitz, 496 U.S. 

444, 451 (1990). Regarding the stop of the Toyota, driven by the codefendants 

of Pena-Morales and Vergara-Moran, officers noted that it was traveling at

about 11:50 p.m.; the front passenger seat was vacant, and the backseat was 

occupied by two persons; the driver had a temporary Florida driver’s license; 

the vehicle was registered in Florida; and the woman in the back seat had a 

Venezuelan passport with no entry stamp into the United States. Trooper 

Gregory Bell testified that he was concerned that the woman was the victim of 

human trafficking or was being held against her will. The combination of these 

factors provided reasonable suspicion sufficient to extend the initial stop.

About thirty seconds later, a Volkswagen Jetta driven by Pena-Morales 

stopped at the checkpoint; it had a Florida registration, and Pena-Morales had 

a Venezuelan passport. When officers discovered the similarities between the 

vehicles, they had reasonable suspicion to ask follow-up questions concerning 

whether there was a connection between the two vehicles and their itineraries. 

The drivers gave contradictory answers concerning whether they were traveling together. At that time, less than five minutes had elapsed from the time 

of the stop. Given that the cars were driving in tandem, the drivers gave contradictory answers, and the vehicles were coming from the “source” city of 

Miami, Florida, the officers had reasonable suspicion that the vehicles might 

be involved in drug trafficking. See United States v. Glenn, 931 F.3d 424, 429 

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(5th Cir. 2019), cert. denied, 2019 WL 6257499 (U.S. Nov. 25, 2019); United 

States v. Brigham, 382 F.3d 500, 508, 511 (5th Cir. 2004) (en banc).

Based on this reasonable suspicion, the officers could then request consent to search the vehicles and conduct a sweep of the vehicles by a drug dog

that was already present at the scene. See Glenn, 931 F.3d at 429. The use of 

the drug dog to conduct a sweep was “a means of investigation that was likely 

to confirm or dispel [the officers’] suspicions quickly.” Brigham, 382 F.3d 

at 511. The dog alerted on the Toyota and had a notable change of behavior as 

to the Volkswagen, giving the officers probable cause to believe that the vehicles were involved in drug trafficking and probable cause to search the vehicles. 

See United States v. Rodriguez, 702 F.3d 206, 210 (5th Cir. 2012).

Further, Pena-Morales has not shown that the district court clearly 

erred in finding that his consent to search the Volkswagen was voluntary. See

United States v. Rounds, 749 F.3d 326, 338 (5th Cir. 2014). Although PenaMorales was not free to leave because he was removed from the vehicle at the 

time he consented to the search, and it was unclear whether he believed no 

evidence would be found, other factors weighed in favor of finding that his 

consent was voluntary as there was no evidence of coercion: He was cooperative; there was no evidence concerning his education or intelligence; and he 

signed a consent form written in Spanish, his native language, which stated 

that he had the right to refuse consent to the search. See id. For these reasons, 

the district court did not err in denying the motion to suppress. See Robinson, 

741 F.3d at 594.

AFFIRMED.

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